Gavin and Repatriation Commission

[2004] AATA 286

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 286

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1566

VETERANS'     APPEALS       DIVISION

Re:         JAMES MURRAY GAVIN

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             18 March 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ post traumatic stress disorder - cerebrovascular accident - panic attacks - panic disorder - whether war-caused 

Veterans' Entitlements Act 1986 ss9, 119(g), 120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82

Woodward v Repatriation Commission (2003) 75 ALD 420

REASONS FOR DECISION

18 March 2004  G.D. Friedman, Member

1.      This is an application by James Murray Gavin (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 9 October 2001..  The VRB affirmed the decision of a delegate of the Repatriation Commission (the respondent) dated 25 November 1999 that the applicant's cerebral ischaemia was not war‑caused.

2.      At the hearing of this matter the applicant was represented by Ms I. Black, clerk, instructed by De Marchi & Associates, on 1 April 2003, Mr D. De Marchi, solicitor, on 16 October 2003 and Mr J. Stevenson, solicitor, on 10 March 2004.  Ms T. Chant, an advocate with the Department of Veterans’ Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T17), together with seven exhibits (Exhibits A1-A7) lodged by the applicant and five exhibits (Exhibits R1-R5) lodged by the respondent.

BACKGROUND

4. The applicant was born in Corowa, Victoria on 4 September 1920. After leaving school at the age of 14, he worked as a telegraph messenger for what was then the Postmaster General's Department (PMG), and is now Australia Post. He served in the Australian Army (the army) from 25 January 1943 to 17 January 1947, spending two years as a signaller in Darwin from 1943, and later in Balcombe, Victoria. His service in the Northern Territory prior to 12 November 1943, for a continuous period exceeding three months, constitutes operational service for the purpose of s 9 of the Veterans' Entitlements Act 1986 (the Act). 

5.      After leaving the army, the applicant returned to the PMG and worked in Melbourne, holding the position of assistant superintendent of planning and development and later controller of planning and development.  He retired in 1980 on health grounds, and suffered from asthma, hay fever, eye problems, skin cancer, deafness and post traumatic stress disorder (PTSD).  On 15 November 1999 he suffered a stroke which affected his left side.

6.      On 1 November 1999 the applicant made application to the Department of Veterans’ Affairs for disability pension for C.V.A and nervous condition..  On 25 November 1999 the respondent diagnosed the claimed condition as cerebral ischaemia and refused the application on the grounds that the condition was not war‑caused.  On 6 December 2001 the applicant lodged an application with the Tribunal for review of the decision of the VRB.

EVIDENCE

7.      In a written statement dated 28 March 2002 (Exhibit A1), the applicant stated that he has an accepted disability of PTSD, and has suffered from panic attacks, which would come at any time, and nightmares since his period of service.  He also said that he has not attended his local doctor for treatment of the panic attacks, although he may have mentioned them to the doctor.  The applicant stated that he has always tried to cope with the attacks by being on his own for a while.  He said that, in these situations, his wife was aware of the attacks and knew when to leave him alone.

8.      In a further written statement dated 29 December 2003 (Exhibit A6), the applicant stated that, on 15 November 1999, he suffered a stroke which affected his left side.  He referred to his service in Darwin and stated that he suffered stress because he expected the Japanese to land at any time.  He said that he felt particularly vulnerable because he was working at the signals office.  The applicant stated that he started to suffer from panic attacks immediately after the war, causing him to panic even more.   He said that the attacks occurred approximately once per month, and during the attacks he felt tightness around the chest and he had difficulty breathing.

9.      In oral evidence the applicant explained that, at the time of the panic attacks, he considered them to be of a spiritual rather than medical nature, so he preferred to seek guidance from a priest.  He said that he now realised that the attacks were a medical condition.  Under cross-examination, the applicant said that panic attacks tended to occur after sad events, such as films about war or with unhappy endings.  He stated that he had a long-standing inferiority complex, which became worse as a result of his army service. 

10.     In a written statement dated 28 March 2002 (Exhibit A7), the applicant’s wife said that she and the applicant were married in 1948.  She stated that, since his army service, the applicant has been tense and nervous and has experienced bad dreams.  She said that she was aware that he suffered from panic attacks from time to time, and he would feel the need to be on his own, so she would leave him alone until he calmed down.

11.     In a written report dated 19 April 2002 (Exhibit A2), Dr E. Cole, consultant psychiatrist, stated that panic disorders and PTSD are mutually exclusive, so that the applicant’s panic attacks and agoraphobia are part of PTSD rather than separate disorders.  Dr Cole noted that in Statement of Principles (SoP) Nº 52 of 1999 for cerebrovascular accident factor 5(c) referred to suffering from panic disorder before the clinical onset of cerebrovascular accident.  He said he …would regard panic attacks as panic attacks, irrespective of any niceties of definition.

12.     In a supplementary written report dated 3 December 2003 (Exhibit A3), Dr Cole clarified his earlier comments and stated:

…However, on consulting DSM IV I note that panic attacks are not listed as a symptom of post traumatic stress disorder.  That is to say, it could be argued that Mr. Gavin’s panic attacks and agoraphobia represent a panic disorder rather than being accounted for by his recognised post traumatic stress disorder.

…

From a clinical standpoint I see no reason why a person should not suffer from both a post traumatic stress disorder and also from panic disorder, but if only one diagnosis is acceptable I would think it reasonable to argue that panic disorder is at least as reasonable a diagnosis as post traumatic stress disorder.

In oral evidence Dr Cole stated that he accepted that panic attacks are not part of PTSD as defined in DSM IV, but in the applicant’s case the panic attacks might be symptoms of a panic disorder rather than PTSD.  Under cross-examination, Dr Cole agreed that the condition suffered by the applicant could be PTSD or panic disorder. 

13.     In a written report dated 25 June 2002 (Exhibit A4), Associate Professor K. Myers, consultant general surgeon, stated:

…

It is my opinion that the most likely cause of his stroke was a cerebral embolus from thrombus in the left atrium associated with long standing atrial fibrillation.

Professor Myers referred to the opinion of Dr Cole concerning PTSD and its relationship to the applicant’s war service.  He said:

…His report also indicates that this can be considered as a risk factor prior to the clinical onset of the cerebrovascular accident and I have no reason to disagree with this expert opinion.

14.     In a written report dated 23 December 2002 (Exhibit R1), Dr L. Walton, consultant psychiatrist, said that he agreed that the applicant suffered from PTSD.  He stated:

…

Even if this man did fulfil the clinical criteria in relation to a panic disorder, which in my opinion he does not, that diagnosis would be excluded in the face of a parallel post-traumatic stress disorder which is a more pervasive and severe condition and can incorporate episodes of panic, although I remain to be convinced that what the veteran describes are actually full-blown panic attacks as opposed to less severe episodes of anxiety.  Again there would be seem to be a reasonable consensus of psychiatric opinion in that regard.

… Mr Gavin does not seem to be afflicted by actual panic attacks let alone a diagnosable panic disorder.  It is a matter for the cardiologists but I suspect that the cardiac arrhythmia (atrial fibrillation) is a much more relevant consideration regarding the occurrence of the stroke.

15.     In a supplementary written report dated 22 July 2003 (Exhibit R2), Dr Walton clarified his earlier comments and stated, in relation to panic disorder:

…I reiterate that I remain to be convinced that the episodes of anxiety which the veteran describes constitute discreet panic attacks as such, but most recently he did inform me that they were accompanied by shortness of breath, which is consistent, however, I understand that he also has a diagnosable condition of asthma, and significant anxiety may occur as a consequence of that.

…

In my opinion the diagnosis of post-traumatic stress disorder is to be preferred and that the anxiety/panic phenomena are part and parcel of that condition.

16.     In oral evidence Dr Walton stated that, for panic disorder to be diagnosed, a number of other matters (such as nightmares) would be unexplained.  Dr Walton reiterated that panic disorder is normally subsumed within PTSD, and said that the applicant had said that his level of anxiety became worse after the death of his daughter in 1982.  Under cross-examination, Dr Walton stated that the applicant’s frail health caused difficulty in obtaining an accurate history, and that there was a possibility that the applicant made light of his attacks.

17.     In a written report dated 18 April 1997 (T5, p10), Dr T. Kennedy, psychiatrist, diagnosed PTSD and said that the dramatic event giving rise to the condition was the death of his friend in a train crash.  In a written report dated 4 July 2001 (T5, p79), Dr N. Parkin, consultant psychiatrist, stated that the applicant does not have the associated cluster of symptoms with clear-cut panic attacks.  He confirmed his earlier diagnosis of PTSD. 

18.     In a written report dated 13 December 2002 (Exhibit R4), Associate Professor J. McCarthy, historian, stated that a bus/train accident occurred at Wodonga on 8 May 1943 at a time when the applicant was stationed at nearby Bonegilla.  He confirmed that the scene would have been most distressing if not horrific, as it involved many casualties.  However, Professor McCarthy could not confirm the contention that the applicant was at the scene after the accident.  He  was unable to confirm the contention that the Japanese carried out bombing  raids  over the Northern Territory after 12 November 1943.  Similarly, Professor McCarthy was unable to confirm the contention that Japanese submarines were in Darwin Harbour during the time of the applicant’s service, although he stated that there may have been a Japanese submarine off the harbour at some stage during the applicant’s service.

CONSIDERATION OF THE ISSUES

19. Section 9(1) of the Act provides:

9(1)        Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

20. The process of deciding whether the material before the Tribunal connects a disease, injury or death to war service, where s 120 and s 120A of the Act apply, was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:

1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved.  

21.      In paragraph 2(b) of SoP N° 9 of 1999 panic disorder is defined as follows:

(b)For the purposes of this Statement of Principles, “panic disorder”, means a psychiatric condition characterised by the following diagnostic criteria:

(A)the person has experienced both:

(1)recurrent unexpected panic attacks; and…

…

In paragraph 8.panic attack is described as a condition, as defined in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), meeting the following criteria:

…

the person has experienced a discrete period of intense fear or discomfort, in which four (or more) of the following symptoms developed abruptly and reached a peak within 10 minutes:

(1)palpitations, pounding heart, or accelerated heart rate; or

(2)sweating; or

(3)trembling or shaking; or

(4)sensations of shortness of breath or smothering; or

(5)feeling of choking; or

(6)chest pain or discomfort; or

(7)nausea or abdominal distress; or

(8)feeling dizzy, unsteady, light headed or faint; or

(9)derealisation (feelings of unreality) or depersonalisation (being detached from oneself); or

(10)fear of losing control or going crazy; or

(11)fear of dying; or

(12)paresthesias (numbness or tingling sensations); or

(13)chills or hot flushes;

21.     In SoP N° 52 of 1999, concerning cerebrovascular accident, the relevant factor is:

5.…

(a)…

(b)…

(c)suffering from panic disorder before the clinical onset of cerebrovascular accident;

…

22.     Mr Stevenson submitted that the material points to an hypothesis connecting the applicant’s war service and his cerebrovascular accident by way of panic disorder.  He said that stressors suffered by the applicant during his service led to a panic disorder, which was suffered before the clinical onset of the cerebrovascular accident.  He relied on the evidence from the applicant and Mrs Gavin, supported by the evidence from Dr Cole, that the applicant suffered from recurrent, unexpected panic attacks as defined in paragraph 2(b)(A)(1) of SoP N° 9 of 1999.  He also stated that the applicant satisfied paragraph 2(b)(B) and (C) of the SoP.  Mr Stevenson submitted that the applicant satisfied paragraph 2(b)(D) because PTSD was already a war-caused condition.  He said the Tribunal should accept Dr Cole’s evidence that either PTSD or panic disorder would be an appropriate diagnosis in this case, as each was equally probable.

23. Mr Stevenson noted the beneficial nature of the legislation, particularly s 119(g) of the Act, and pointed out that Dr Walton had agreed that the applicant tended to make light of his medical conditions, so that the symptoms described by the applicant could be applicable to panic disorder rather than PTSD. He submitted that consequently the applicant also satisfied factor 5(c) of SoP N° 52 of 1999.

24.     Ms Chant referred to the definition of panic disorder in paragraph 8 of SoP N° 9 of 1999, and submitted that DSM IV should guide the Tribunal, in its duty to satisfy itself as to an appropriate diagnosis (Woodward v Repatriation Commission [2003] FCAFC 160). She acknowledged that the applicant’s frail health had presented difficulty in obtaining evidence from him. However, she stated that his oral evidence, written statements and his wife’s statement were consistent with the history given to Dr Walton, and that the symptoms did not meet the criteria for panic disorder.

25.     Ms Chant stated that diagnostic criteria listed in the definition of panic disorder effectively exclude panic attacks, where the panic attacks are better accounted for by a condition such as PTSD.  She submitted that the weight of psychiatric evidence was that the applicant suffers from PTSD, and she noted that even Dr Cole did not exclude this diagnosis. 

26.     The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.

27.     The Tribunal has considered each of the four steps in Deledio..  In respect of the first step, the Tribunal finds, after taking into account all relevant matters, that the material points to a hypothesis connecting the cerebrovascular accident with the circumstances of the particular service rendered by the veteran. 

28.     In respect of the second step, the Tribunal finds that SoP N° 52 of 1999 concerning cerebrovascular accident and SoP N° 9 of 1999 concerning panic disorder were in force and are relevant.

29.     In respect of the third step, the Tribunal notes that, in his evidence, Dr Cole raised the possibility that panic disorder was at least as reasonable a diagnosis as PTSD.  Therefore, although Dr Cole’s view is not shared by other psychiatrists, the Tribunal finds that there is material supporting or pointing to the hypothesis connecting the applicant’s injury or disease with the circumstances of the service rendered by him, and the applicant satisfies the third step. 

30.     In respect of the fourth step, that is whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact.  The Tribunal accepts the submission by Ms Chant that DSM IV should guide the Tribunal in its duty to satisfy itself as to an appropriate diagnosis (Woodward).  In this case the appropriate diagnostic criteria for panic disorder are to be found in paragraph 2(b) of SoP N° 9 of 1999.  The Tribunal has considered the oral evidence from the applicant, his written statements and his wife’s statement, as well as the overwhelming psychiatric evidence that the applicant suffered from PTSD and not from panic attacks.  In doing so the Tribunal also notes that Dr Walton was careful to give the applicant every opportunity to state fully the symptoms experienced by him.

31. On this basis, and taking into account s 119(g) of the Act, the Tribunal is satisfied beyond reasonable doubt that the history and symptoms of episodes, as described by the applicant to medical practitioners and to the Tribunal, did not include a discrete period of intense fear or discomfort, and was not accompanied by four or more of the relevant symptoms which developed abruptly and reached a peak within 10 minutes. Therefore, the Tribunal finds that the applicant did not suffer from panic attacks as defined in DSM IV and in SoP N° 9 of 1999. It follows that he did not suffer from a panic disorder. In the circumstances he is unable to satisfy factor 5(c) of SoP N° 52 of 1999. Consequently, the Tribunal is satisfied beyond reasonable doubt that the cerebrovascular accident did not arise from a war-caused injury, and the claim must fail.

DECISION

32.     The Tribunal affirms the decision under review.

I certify that the thirty-three [32] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Dates of hearing:   1 April 2003

16 October 2003

10 March 2004 

Date of decision:  18 March 2004

Advocates for applicant:             Ms I. Black        (1 April 2003)
  Mr D. De Marchi (16 October 2003)

Mr J. Stevenson (10 March 2004)
Solicitor for applicant:                  De Marchi & Associates
Advocate for respondent:            Ms T. Chant
Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs